Conservatives are suing law firms over diversity efforts. It’s working.

Meanwhile, five Republican state attorneys general have fired off letters to 100 top law firms, threatening legal action and suggesting that “racial discrimination in employment and contracting may be commonplace” in the legal industry.

Supreme Court case could spark rush of reverse-discrimination claims

These actions have spurred some swift changes: Three big law firms — Perkins Coie, Morrison Foerster and Winston & Strawn — opened their fellowships aimed at students of color to students of all races and backgrounds after being sued. After receiving an Oct. 9 letter threatening litigation, a fourth law firm, Adams and Reese, ended its diversity fellowship.

The American Alliance for Equal Rights is a nonprofit run by Edward Blum, the activist who successfully challenged affirmative action in college admissions, leading to a landmark Supreme Court ruling in June.

“Many law firms have been some of the most enthusiastic and outspoken entities to restrict opportunities to resources based on race and ethnicity,” Blum said in an email to The Washington Post. “It is likely that other corporate entities with similar racially discriminatory policies will be sued in the coming weeks.”

Kenji Yoshino, a law professor and director of the Meltzer Center for Diversity, Inclusion and Belonging at New York University, said targeting law firms is effective because it can serve as a warning to other industries.

“If you sue a law firm, then the law firm gets up to speed very, very quickly on what is permissible and what’s impermissible,” Yoshino said, noting that many law firms advise Fortune 500 companies, government agencies and nonprofits. “It’s a way of getting the message out about people needing to flip over their policies in a wide variety of domains — not just fellowships, but hiring, recruiting retreats and the like.”

A law that helped end slavery is now a weapon to end affirmative action

For decades, employers have been banned from making employment decisions based on race. But long-standing precedent has allowed companies to take race into consideration in hiring and other decisions, especially when working to counter historic inequalities in their ranks.

Both the legal industry and corporate America as a whole have struggled to diversify their workforces and upper ranks. There are only eight Black CEOs among Fortune 500 companies — the highest number since the list started in 1955. And while Black people make up about 14 percent of the U.S. population, less than 5 percent of practicing attorneys are Black, a share that has grown less than 1 percent since 2010, according to the American Bar Association. About 10 percent of practicing attorneys fall into other minority groups.

Since the Supreme Court struck down race-conscious college admissions at Harvard University and the University of North Carolina in June, Jenner & Block employment attorney Ishan Bhabha said he’s been inundated with calls from companies seeking guidance on how to protect their efforts to hire, mentor and promote a diverse workforce.

Companies view such programs as a “key plank in their business case and how they’re going to be successful,” said Bhabha, who co-chairs his firm’s DEI protection task force and represented two law firms against diversity challenges — Perkins Coie and Winston & Strawn.

While many diversity programs are legal, companies should be looking closer at programs that direct large amounts of money or tangible benefits to designated groups, such a racial or gender groups, Bhabha said, although programs like employee resource groups that are open to everyone, as well as hiring based on an applicant’s commitment to diversity and inclusion, are generally safe.

The mounting scrutiny is leading some firms to set up practices dedicated to making DEI programs safe from litigation and bad publicity. Bhabha said Jenner & Block formed its DEI task force in October 2022, having been involved early in the Harvard and University of North Carolina case, representing the interests of other Ivy League schools.

“We could see this impending wave because we’d been working on the case,” Bhabha said. “And it was very clear that this was not just going to be limited to college admissions.”

In their Aug. 29 letter, Republican state attorneys general highlighted a relatively new hiring practice that has been widely adopted in the legal industry. The Mansfield rule, established in 2017 and based on the National Football League’s Rooney Rule, holds that 30 percent of candidates for leadership roles need to be women and historically underrepresented minorities. Supporters of the rule, which some 200 firms have adopted, say it is helping to diversify law firms’ upper ranks.

“These programs were already questionable before the Supreme Court’s decision” on race-conscious college admissions, the attorneys general wrote. “[N]ow, they are unambiguously in tension with employer legal duties under state and federal law.”

Merle Vaughn, national law firm diversity practice leader with Major, Lindsey & Africa, said law firms are under so much pressure because DEI opponents “realize that law firms are traditionally risk-averse, and lawyers are risk-averse by nature.”

It’s too soon to gauge the magnitude of recent litigation on corporate diversity efforts, Vaughn said, but one thing is certain: Despite efforts to diversify the legal industry, Black and minority representation continues to lag.

The growing battle over corporate diversity practices, explained

The assault on private-sector DEI programs reaches beyond the legal industry. America First Legal, the conservative nonprofit backed by former Trump adviser Stephen Miller, has filed complaints against NASCAR, Major League Baseball, Progressive Insurance, Activision Blizzard and Nordstrom targeting practices ranging from establishing workplace affinity groups for employees of color to giving grants to Black-owned businesses.

In July, 13 Republican state attorneys general warned Microsoft and other Fortune 100 companies in July to reexamine their DEI policies, threatening “serious legal consequences” for companies that rely on race-based employment preferences, including “explicit racial quotas and preferences in hiring, recruiting, retention, promotion and advancement.”

Loretta E. Lynch, a former U.S. attorney general who now practices law at Paul, Weiss, Rifkind, Wharton & Garrison, said she’s been reminding clients that it’s still “lawful and laudable” to try to improve workforce diversity. But “the more restrictive the language that companies use, the higher the risk” of legal scrutiny, she said.

Lynch is part of a legal team representing the pharmaceutical giant Pfizer against a lawsuit alleging that one of its fellowships illegally discriminates on the basis of race. The fellowship offered jobs and graduate school funding to underrepresented college students, although it was opened to students of all backgrounds after the lawsuit was filed. The case was dismissed in December but is on appeal in the 2nd Circuit.

“You have to make sure everyone has an opportunity to compete equally,” said Lynch, who is also a member of Paul Weiss’s new DEI strategic advisory practice. “You want to make sure that you recognize that excellence is found everywhere.”

A newspaper giant tried to diversify its staff. White workers sued.

Vaughn said law firms have found a way to profit from the legal threats by helping companies with DEI issues.

“As law firms always do, they’re going to make money on this,” Vaughn said. But from her perspective, the legal attacks on corporate diversity policies are “a distraction from the efforts that have been made for the past 50 years for equity and inclusion.”

“The smart people who understand that not only is this good for our country, it’s good for their business, will figure out alternative ways of doing what needs to be done,” she said.

Alternatives include moving away from explicit consideration of protected characteristics — such as race, gender and sexual orientation — to the “character of each individual applicant” via statements or essays, NYU’s Yoshino said. He said some of the most “aggressive” programs — including those that tie executive compensation to diversity goals — are “going to be in trouble.”

They could be replaced by programs aimed at removing unconscious bias from hiring, as well as building a “firewall” between company officials who recruit job candidates and those who make hiring decisions, Yoshino said.

“DEI will look very, very different 10 years from now,” Yoshino said. “But it will still exist — if anything, in a more robust form than it has today.”